The Pulse: Addiction, Anonymity, And The ADA: A Case Study

People who are in recovery from addiction or mental illness might be open to sharing their story with anyone who asks. Or they might not. There's still...

by Kristin Gourlay

People who are in recovery from addiction or mental illness might be open to sharing their story with anyone who asks. Or they might not. There's still enough stigma and misunderstanding about the disease of addiction that keeping it private might feel safer.

Just in case, though, there's the Americans with Disabilities Act. It protects people who are in recovery from or treatment for addiction or mental illness from being excluded from certain opportunities or having to disclose private health information.

But it doesn't seem to apply for people who want to practice law in Rhode Island - at least according to the Rhode Island Disability Law Center and the ACLU. They've filed a complaint under the ADA with the U.S. Dept. of Justice on behalf of a law school grad who wants questions about disabilities (like addiction) removed from the bar application.

Admission to the Bar

If you want to practice law in Rhode Island, as in other states, you have to apply for admission to the Rhode Island Bar. That includes filling out a questionnaire for the Supreme Court of Rhode Island's Committee on Character and Fitness, which has some oversight over who gets admitted. The questionnaire asks for details about past substance abuse and mental health treatment. The complaint says that's unnecessary, burdensome, and invasive. A spokesman for the Supreme Court of Rhode Island declined to comment.

So, first things first, addiction is a disability, you ask? Yes, says Anne Mulready, an attorney with the Rhode Island Disability Law Center representing the law school grad, "If they are in recovery or in the process of receiving treatment." Those protections do not extend to people who are actively using drugs or alcohol.

Next, let's look at the questions on the Committee on Character and Fitness application. Their goal is to determine whether an applicant poses a threat to the public and whether health issues might impact his or her ability to practice the law. Fair enough. But do these questions actually get at those answers?

Here are the questions at issue:

"32. During the past three years, have you been addicted to or treated for the use of any drug, including alcohol? Yes__ No___

"If yes, please state the details, including dates and names and addresses of the individuals who provided treatment, if treatment was received."

"33. Within the past three years have you suffered from any condition or impairment (including but not limited to substance abuse...) that in any way impairs your judgment, or, if untreated, could affect your ability to practice law in a competent and professional manner? Yes__ No__

"If yes, state the name and complete address of each hospital, institution..."

There's another question that asks whether, in the past 10 years, substance abuse or mental illness was your explanation for getting fired or getting in trouble with the law.

What's interesting is that the Court was taken to task on this issue in 1996. The questions were reworded. Everyone seemed satisfied, according to the RIDLC and the ACLU's complaint. Then, for reasons unknown, the Court revised the questionnaire in 2007, to the language you see above. The Court won't say why.

What's wrong with those questions

The RIDLC and the ACLU say those questions "presume a link between diagnosis and treatment and the ability to practice law." They say the application unfairly subjects people with disabilities (like addiction) "to additional burdens, including disclosure of sensitive health information, in violation of the ADA." Their complain also calls the questions unnecessary because they don't "effectively identify unfit applicants."

The other issue is that many people in recovery from addiction identify themselves as recovering, or being in continuous, long-term recovery. Many say they are alcoholics or addicts, present tense, because it's a chronic, progressive disease that requires lifelong treatment (in whatever form that person chooses, whether it's 12-step programs or medication, etc.). So when asked "have you been treated" or "have you suffered from substance abuse...that in any way impairs your judgment...if untreated," many alcoholics and addicts, for instance, might feel compelled to answer yes. But does that mean they're unfit to practice law? If they answer no, could it somehow be discovered later and cause someone to accuse the applicant of lying?

The RIDLC's Anne Mulready hopes the issue is settled before the next bar exam, in February.